A curious admission from the solicitor general found on pg. 10 in the [PDF] transcript of the oral arguments:

CHIEF JUSTICE ROBERTS: I suppose the most difficult case for you is the “Early News” case where you have just a fleeting expletive, unlike “Saving Private Ryan” and the others. I mean, how do you distinguish the “Early News” case from the ones before us?

GENERAL GARRE: The Commission has determined that news programming would be treated differently, with greater restraint, because of the different values present in that situation.

CHIEF JUSTICE ROBERTS: So the same — if you had a news report about Nicole Richey [sic] and the Cher exhibits, they — they could use the actual language, even though they can’t during the — the awards shows?

GENERAL GARRE: Yes.

There are arguments to be made that the public airwaves should not be a constant free-for-all. But I’m not convinced the news/entertainment distinction has ever been sustainable, let alone in today’s world.

– Justin Levine

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The only way that this will cost California taxpayers is if the veterans who take out these loans manage to default on their mortgages. All 3,600 veterans would have to default on their loans in order to stick taxpayers with the full costs of Prop. 12 bonds. Even then, the state would be able to recoup much of the costs by selling the properties to someone else.

This program has been around since 1921 and veterans have shown that they have a very low rate of default.

If you haven’t voted yet – Yes on 12.

[I suspect that Patterico will be particularly annoyed with me if I don’t allow comments on this particular thread. So have at it.]

One of the great weaknesses of the bailout package as proposed was its lack of specificity about where the money was going. It was too easy to simply demagogue the package as a bailout of Wall Street “Fat Cats.”

Treasury should provide a list of institutions that will be considered for relief under the proposed legislation, and an estimate of how much in bad debt each institution will be trying to sell to the Treasury.

The reality is that not all this money is going to Wall Street “Fat Cats.” As an example — and this is simply a hypothetical made to make a point — I think public sector employees in California might view this issue differently if they knew that CalPERS (California Public Employee Retirement System) owned $20 billion in bad mortgage bonds. That would be a huge drag on CalPERS’ ability to generate earnings in the future.

Right now those bonds have a value of $0.00 because there are no ready buyers in the market. But, if a given bond is backed by $5 million in real estate as collateral, then the bond — even with no buyers — has an inherent value of $5 million. If the Treasury buys that bond from CalPERS for $2.5 million, CalPERS has to take a 50% hit on its balance sheet, but at least it gets the $2.5 million to invest elsewhere on behalf of its retiree members in an effort to generate earnings/income for its beneficiaries. Right now that bond is nothing more than wallpaper.

So, if Treasury had a tangible list of institutions that are likely to be the recipients of bailout money in exchange for collateralized debt instruments they cannot sell in the current market conditions, a large segment of people who are viscerally opposed to this approach may begin to understand that they have a financial interest in seeing these institutions be able to un-tangle themselves from this mess.

Second suggestion — have the legislation require that in an agreement that each selling institution must sign in order to participate, that the money they receive be held in a separate blocked account which can be used for no other purpose than to reinvest in their core business functions. It cannot be used for ancillary business needs such as compensation, dividends, etc. This would be subject to both regulatory and congressional oversight. If the businesses want the billions to take the bad debt off their books, then they are going to have to commit to using the money they receive in a constructive fashion. They can make the specific decision about where they put it to use, but certain types of uses would be prohibited.

This correction published in the New York Times yesterday should cause the hair on the back of your neck to stand up — and not simply because the reporting of these “quotes” might have impacted the market.

Here’s what the correction says:

An article about the effect of the Wall Street crisis on Morgan Stanley and Goldman Sachs cited two sources who were said to have been briefed on a conversation in which John J. Mack, chief executive of Morgan Stanley, had told Vikram S. Pandit, Citigroup’s chief executive, that “we need a merger partner or we’re not going to make it.”

On Thursday, Morgan Stanley vigorously denied that Mr. Mack had made the comment, as did Citigroup, which had declined to comment on Wednesday. The Times’s two sources have since clarified their comments, saying that because they were not present during the discussions, they could not confirm that Mr. Mack had in fact made the statement. The Times should have asked Morgan Stanley for comment and should not have used the quotation without doing more to verify the sources’ version of events.

This correction immediately took my thoughts to this review by Jack Goldsmith of New York Times’ reporter Eric Lichtblau’s book “Bush Law: The Remaking of American Justice.”

Lichtblau was the reporter who broke the story of the Terrorist Surveillance Program, and the story on the cooperation of the international bank consortium SWIFT in tracking terrorist financing through international banking transactions. His book recounts his reporting on both these subjects in detail, as well as his and James Risen’s struggle with the New York Times’ editors to get his blockbusters published on the front page of that paper.

Goldsmith’s is an extremely thoughtful article, and those interested in the implications of the New York Times‘s decisions to reveal classified intelligence programs on its front page should take time to read and consider Goldsmith’s thoughts. I only came across this article in the last few days — it was published in The New Republic back in August — but it’s very sobering in its analysis.

Today the Washington post and LA times both run stories about the editing of proposed Congressional testimony of federal officials by members of the Vice President’s staff. The subject of the deleted testimony was the impact on public health posed by global climate change. The “whistleblower” — a novel description since this subject has been previously reported on — is former EPA deputy associate administrator Jason K. Burnett. One of the edited officials was Julie Gerberding, the head of the Centers for Disease Control, who intended to testify that climate change is a “serious public health concern.”

When that testimony was cut, Burnett attempted to send an Email to the White Houe on December 5 announcing EPA’s finding that global warming poses a danger to the public. Burnett was responsible for climate change issues at EPA. The WH declined to open Burnett’s email, because such a finding would obligate the agency to issue regulations to limit carbon dioxide emmissions. The administration does not accept the accuracy of the science behind the issue of global warming, and the role of humans in causing global warming through the emission of carbon dioxide.

Here is the disclosure for context about Burnett that the WaPo article included:

“The Council on Environmental Quality (CEQ) and the Office of the Vice President (OVP) were seeking deletions to the CDC testimony,” Burnett, 31, a Stanford-trained economist and a Democrat, wrote in response to an inquiry from Boxer’s committee. “CEQ requested that I work with CDC to remove from the testimony any discussion of the human health consequences of climate change.” … Burnett — a grandson of high-tech entrepreneur David Packard and a member of the Packard Foundation’s board of trustees — has given more than $129,000 to Democratic campaigns in recent years, including $3,600 to presidential candidate Barack Obama (Ill.).

The LAT, on the other hand, had this to say about Burnett:

Burnett resigned as the EPA’s associate deputy administrator last month. He also has contributed $4,600 to Democratic presidential candidate Barack Obama’s campaign….

This disclosure is certainly warranted, but is it sufficient given Burnett’s admitted conduct? The LAT article describes his effort to hijack administration policy as follows:

The Supreme Court ruled last year that the EPA was required to evaluate whether greenhouse gas emissions posed a risk and, if so, implement regulations on polluters….. In December, Burnett said, he sent the White House an e-mail finding, in response to the Supreme Court ruling, that greenhouse gas emissions pose a risk, a step toward regulation.

This episode presents an interesting opportunity to consider the theory of the unitary executive. Simply stated, the theory states that the President, as the only elected official of the Executive Branch of Government, solely possesses the executive power under the Constitution to execute the laws. This theory would also hold that Congress cannot confer executive power on executive branch officials other than the President since the Constitution vests all executive Power in the President.

By creating officials and agencies such as EPA, and imposing upon them mandatory obligations such as the one Burnett is attempting to force on the Bush Administration by putting his finding in an email, Congress is actually usurping the executive Power vested in the President by forcing the Administration to do something through an inferior administration official that the elected President is not prepared to do.

Having read Judge Walker’s opinion last week in which he determined that the federal common law “state’s secrets” privilege was abrogated by Congress with its passage of FISA, it occurred to me that there is a fairly simple hypothetical which can be used to explore the view that FISA is an unconstitutional encroachment on the Article II “Commander in Chief” powers of the US.

Lets assume that the Clinton Administration hadn’t been so feckless in its closing months, and that after the bombing of the USS Cole it had followed the advice of Richard Clarke, sought an authorization to use force against Bin Laden, AQ, and the Taliban, and initiated offensive military operations — of whatever type — in Afghanistan for the purpose of dislodging Bin Laden and AQ.

Lets next assume that part of the offensive operations was an aggressive intelligence collection effort conducted by NSA and DOD which focused on communications between Bin Laden and other AQ actors in Afghanistan on the one hand, and the loose net of affiliate organizations around the world on the other hand.

Lets next assume that the Bush Administration kept the same policy following the election, and remained on the offensive against Bin Laden and AQ, short of an all out invasion of Afghanistan. That during this effort the intelligence agencies were able to intermittently intercept cell phone transmissions believed to be from Bin Laden and other members of AQ’s leadership.

We’re still talking about a pre-9/11 timeframe here, and from those interceptions intelligence analysts were convinced there was some type of plot underway inside the US, but the details were not yet known. But in July 2001, interceptions established a contact between AQ in Afghanistan and Ramzi Binalshibh in Germany. Binalshibh is identified by intelligence agencies as having been associated with a cell of Islamic radicals in Hamburg, one of whom is Mohammed Atta, who is found to be attending flight school in the US in the summer of 2001, with travel records from various intelligence agencies showing they had traveled to Afghanistan together in 1999.

So, based on this information, in July 2001, NSA and DOD begin intercepting all telephone communications of Binalshibh in Hamburg. These interceptions are the direct result of battlefield intelligence obtained in Afghanistan, and the purpose is to seek to collect actionable intelligence which might be used by the military or civilian law enforcement to prevent an attack on US soil.

Under these circumstances, is the President’s Article II authority as Commander in Chief to be constrained by FISA if Binalshibh decides to call Atta in the United States? Its not Atta’s phone that is being monitored — its Binalshibh’s phone in Hamburg. Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta?

Prop. 98 and Prop. 99 are both equally deceptive in different ways. They end up giving ammo to those who argue that California ought to do away with its public initiative system since it can be too easily manipulated.

5/9/2008

Now that there is a presumptive Dimocrit nominee for the general election, I’m going to start a recurring series of postings commenting on non-answers given by Obama to direct questions posed to him by the media and others.

The problem I expect to see develop in the very near term is the dramatic curtailment of Obama’s availability to answer questions in a format that provides for any level of candidness. He is clearly an effective speaker when working with a teleprompter and a script, but his impromptu responses to media questions are largely void of substance. When they do have substance they often amount to a dodge of the issue, but sometimes they contain some nugget of information about the stealth candidate that is illuminating with respect to his real beliefs. As these more revealing comments appear I’m going to highlight them, and the implications of those comments in future policy issues.

Yesterday Obama appeared on Wolf Blitzer’s show on CNN. As an initial entry in this series, I present the following “answer” on a simple question about whether he might advocate an increase in the capital gains tax rate:

[Blitzer] Because they’re arguing already that you want to increase capital gains taxes, for example, on investments, and stocks, and things like that.

(CROSSTALK)

BLITZER: A lot of middle-class people have those kinds of accounts. If they’re…

OBAMA: If they have, — Wolf, if they have a 401(k), then they are going to see those taxes deferred, and they’re going to pay ordinary income when they finally cash out. So, that’s a phony argument. And this is something that you have seen the Republicans consistently do, is they try to make this broad- based argument about, he’s going to raise your taxes as a cover for them eliminating taxes for people like myself and you, who can afford to pay a little bit more…

Now this was a pretty straight-forward question — whether he’s suspectible to GOP claims that he will raise the capital gains tax rate, and what that means for middle class Americans.

Rather than address the question — by saying, for example, that the capital gains tax rate it too low and should be raised, or that it is fine where it is and will be left alone — he answers with a complete obfuscation.

401(k) plans have nothing to do with capital gains taxes. Contributions to 401(k) plans are made with pre-tax earnings, and the withdrawals upon eligibility are taken as ordinary income and taxed accordingly at the tax rate applicable to the retiree — including that part of the plan’s funds the constitute appreciation/ capital gains.

Wolf Blitzer is too much of an idiot to follow-up by pointing out that Obama hadn’t answered the question, and the issue of raising the capital gains tax rate extends far beyond simply raising taxes on the “rich”.

To suggest that American households only own stocks in their 401(k) plan — and to ignore completely the issue of capital gains taxes on investment accounts, college savings accounts, on the sale of homes, farms, or other real property — reflects either ignorance of basic tax issues, or an unwillingness by Obama to state his positions honestly.

Frankly, I think its more of the former than the latter.

Obama would be only the most recent example in my life of a Harvard Law School egghead who lacked a basic comprehension of day-to-day issues facing ordinary Americans. Some of the dumbest people I’ve ever met — including some of the worst lawyers I’ve ever encountered — were graduates of elite East Coast academic institutions.

4/21/2008

Perhaps he is too bashful to admit it, but Patterico’s favorite newspaper labels him as a “prominent Angeleno” in today’s edition which asks several people their views on Special Order 40 in Los Angeles. (His actual views on the subject are well worth reading too – apart from the side issue of what he is labeled as.)

[Justin Levine]

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